Trust is an important element in successfully resolving legal issues collaboratively. According to a former state Supreme Court judge who now handles mediation, it is often mutually beneficial to engage in good faith negotiations during mediation, but one must still guard against the other side trying to gain an unfair advantage.
Sticking by initial offers
Preliminary discussion will often take place before the actual formal mediation or negotiation process. Sticking by those initial offers is crucial to building a collaborative feeling of trust. Once a side starts changing or withdrawing their offer, that trust falls in jeopardy because inconsistency leads the other side to believe that any agreement will not be honored.
When is it appropriate to modify a demand?
There are, however, circumstances where there is a legitimate reason to revise initial offers, including:
- The court may have rendered a decision
- A decision on the admissibility of expert testimony
- Newly discovered evidence or witnesses
- A new defense or claim needs to be considered
- Any reason that forms a good faith basis to change an offer
Communication is the key
The important part of any good faith negotiations is to keep the channels of communication open. Attorneys usually best serve their clients when they communicate the needs and wants to the other side – rather than divulging strategy, this is simply a way to let the other side fully consider any offers or demands. If the demand is a non-starter, it is best to let the other side know this before formal negotiations are to begin.
It is also crucial for potential clients to discuss this approach before hiring their lawyer. Every attorney has their own style, so it is wise to find one whose style matches your own goals.